Visinscaia v. Beers

• Decision Date: 16 December 2013
• Docket Number: Civil Action No. 13–223 (JEB)
• Parties: Svetlana Visinscaia, Plaintiff, v. Rand Beers, et al., Defendants.
• Court: U.S. District Court — District of Columbia

4 F.Supp.3d 126

Svetlana Visinscaia, Plaintiff,

v.Rand Beers, et al., Defendants.

Civil Action No. 13–223 (JEB)

United States District Court, District of Columbia.

December 16, 2013

Ladan Mirbagheri-Smith, Rockville, MD, for Plaintiff.

Geoffrey Forney, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

This case calls on the Court to decide whether Plaintiff Svetlana Visinscaia is a great ballroom dancer or merely a very good one. Visinscaia, a native and citizen of Moldova, was admitted to the United States on August 5, 2011, on an F–1 visa to attend community college in Virginia. Toward the end of her first year in this country, she filed a petition asking the United States Citizenship and Immigration Service to reclassify her as an “alien of extraordinary ability,” a status that would allow her to remain here as a competitive dancer and coach. As evidence of her ability and renown as a dancer, Visinscaia submitted a number of published reports about her performances, as well as awards and letters from colleagues and students attesting to her leading role in the international “Dance Sport” community. USCIS nonetheless denied her application on the ground that she did not satisfy the statutory requirements for an extraordinary-ability visa.

After exhausting her administrative options, Visinscaia filed suit in this Court under the Administrative Procedure Act, alleging that the agency's denial was arbitrary and capricious and an abuse of discretion. The parties now cross-move for summary judgment. Although Visinscaia has produced impressive evidence of her successful career as a dancer and dance instructor, the Court cannot overturn the agency's reasoned judgment.

I. Background

Visinscaia was born in Moldova. See Administrative Record at 519 (Plaintiff's Passport). Showing promise as a dancer from a young age, she began to compete—and do very well—in competitions throughout her country and in Eastern Europe generally. See AR 600–09 (Table Documenting Visinscaia's Finishes at International Competitions Beginning at Age 11). By 2005, the 15–year old had achieved a world-class ranking in the field of ballroom dance, and in that year she won her first—and, to this point, only—world championship in the World Dance Sport Federation Junior II Ten category. See AR 550–52 (Certificate Verifying 2005 Junior Championship). Having reached the end of the road on the juniors' circuit, Visinscaia continued to compete but also began serving as an instructor at a local dance academy. See AR 51 (Formal Complaint in Response to USCIS Request for Evidence). In 2011, she came to the United States to study in Sterling, Virginia. See AR 470 (Plaintiff's I–140 Petition).

Visinscaia began her quest for a new, long-term visa in May 2012, when she filed an I140 petition for classification as an alien of extraordinary ability in the field of ballroom dance. See id. at 469. That Visinscaia would seek such status is unsurprising: federal law assigns applicants of extraordinary ability the highest priority among employment-based visa applicants, see8 U.S.C. § 1153(b)(1)(A), and such aliens need not present evidence of a job offer from an American employer before they are granted a visa. Kazarian v. USCIS, 596 F.3d 1115, 1120 (9th Cir.2010) (citing 8 C.F.R. § 204.5(h)(5)).

In her initial filing and in response to a request for further evidence from USCIS, Visinscaia produced documents purporting to show that she had achieved sustained success in her field, including national and international awards, publications chronicling her achievements, letters of support from her students and coaches, and more. In light of the evidence, she argued, she qualified as an immigrant of extraordinary ability and deserved a visa. See Compl., ¶ 34.

After an impressively thorough review of Visinscaia's evidence, USCIS concluded that, despite her various awards, her achievements did not rise to the level necessary to obtain an extraordinary-ability visa. See AR 438 (USCIS Denial of Plaintiff's I–140 Application). As a result, it denied her application, and the agency's Administrative Appeals Office affirmed that decision on de novo review. See Compl., Exh. 4 (AAO Appeal Denial) at 14. In bringing suit, Visinscaia contends that the agency's final decision violates applicable law, and she asks the Court to vacate that decision and to direct the agency to declare her an alien of extraordinary ability. See Compl., ¶¶ 34–36. The parties have filed cross-motions for summary judgment, to which the Court now turns.

II. Legal Standard

Plaintiff relies on the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge USCIS's denial of her visa application. Summary judgment is one mechanism for adjudicating claims under the APA. See Loma Linda Univ. Med. Ctr. v. Sebelius, 684 F.Supp.2d 42, 52 (D.D.C.2010). Due to the limited role federal courts play in reviewing administrative decisions, however, the typical Federal Rule 56 summary-judgment standard does not apply in such cases. See Sierra Club v. Mainella, 459 F.Supp.2d 76, 89–90 (D.D.C.2006) (citing Nat'l Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, at *7 (D.D.C.2005)). Instead, “the function of the district court is to determine whether or not ... the evidence in the administrative record permitted the agency to make the decision it did.” Id. (internal citations omitted). Summary judgment thus serves as the mechanism for deciding, as a matter of law, whether an agency action is supported by the administrative record and otherwise consistent with the APA standard of review. See Bloch v. Powell, 227 F.Supp.2d 25, 31 (D.D.C.2002) (citing Richards v. INS, 554 F.2d 1173, 1177 (D.C.Cir.1977)).

The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review—which appropriately encourages courts to defer to the agency's expertise, see Motor Vehicle Mfrs. Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)—an agency is required to “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. (internal quotation marks omitted). In other words, courts “have held it an abuse of discretion for [an agency] to act if there is no evidence to support the decision or if the decision was based on an improper understanding of the law.” Kazarian, 596 F.3d at 1118.

It is not enough, then, that the court would have come to a different conclusion from the agency. See Nat'l Ass'n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir.2003). The reviewing court “is not to substitute its judgment for that of the agency,” id. nor to “disturb the decision of an agency that has examine[d] the relevant data and articulate [d] ... a rational connection between the facts found and the choice made.” Americans for Safe Access v. DEA, 706 F.3d 438, 449 (D.C.Cir.2013) (internal quotation marks and citation omitted). A decision that is not fully explained, moreover, may be upheld “if the agency's path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).

III. Analysis

USCIS does not disagree that Visinscaia has been a successful competitive dancer for more than a decade. See, e.g., Def. Mot. at 13 (noting that AAO concluded that at least one of Visinscaia's dance awards was nationally recognized). Merely achieving success, however, is insufficient for someone to be granted extraordinary-ability status. Instead, to determine whether Visinscaia qualifies, the agency—and this Court—must interpret and apply § 203(b)(1)(A) of the Immigration and Nationality Act, codified at 8 U.S.C. § 1153. Although the INA does not define “extraordinary ability” beyond the general recognition that abilities in the “sciences, arts, education, business, or athletics” may qualify, see8 U.S.C. § 1153(b)(1)(A)(i), the statute does provide some oblique guidance.“Sustained national or international acclaim” is a hallmark of extraordinary ability, for example, as are achievements that “have been recognized in the field through extensive documentation.” Id. Federal regulations explain, further, that “extraordinary ability” can be defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” 8 C.F.R. § 204.5(h)(2).

The “extraordinary ability” designation is thus “extremely restrictive” by design. See Lee v. Ziglar, 237 F.Supp.2d 914, 919 (N.D.Ill.2002); see also id. at 915, 918 (finding that “arguably one of the most famous baseball players in Korean history” did not qualify for visa as baseball coach for Chicago White Sox). Still, evidence of extraordinary ability is not impossible to come by. See, e.g., Muni v. INS, 891 F.Supp. 440 (N.D.Ill.1995) (finding that agency improperly discounted evidence for NHL hockey player who had won Stanley Cup three times, won “most underrated defenseman,” and been paid more than average NHL player); Matter of Price, 20 I. & N. Dec. 953, 955–56 (BIA 1994) (granting visa petition of professional golfer who won 1983 World Series of Golf and 1991 Canadian Open, ranked 10th in 1989 PGA Tour, collected $714,389 in 1991, and received widespread major media coverage).

To meet this strict definition, an alien must submit evidence that she has sustained national or international acclaim...